dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 12, 2024 In Re: 31135167 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
temporarily employ a qualified nonimmigrant worker in a position that requires both (a) the theoretical 
and practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor 's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the California Service Center denied the petition, concluding the record did not 
establish the Beneficiary was qualified to undertake the duties of a specialty occupation. The matter 
is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 214(i)(2) of the Act, 8 U.S.C. § l 184(i)(2), states that an individual applying for classification 
as an H-lB nonimmigrant worker must possess a license if it is required for the occupation, have 
earned a bachelor's or higher degree in a specific specialty related to the job duties, or have earned the 
equivalent of a bachelor's or higher degree in a specific specialty related to the job duties based on 
having experiences in the specialty equivalent to the completion of the degree and recognition of 
expertise in the specialty through progressively responsible positions relating to the specialty. 
The supplementing regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C) restate the statute and require meeting 
one of four criteria to qualify to perform services in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from 
an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher 
degree required by the specialty occupation from an accredited college or university; 
(3) Hold an unrestricted state license, registration or certificate which authorizes him or her to 
fully practice the specialty occupation and be immediately engaged in that specialty in the state 
of intended employment; or 
(4) have education, specialized training, and/or progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation and have recognition of expertise in the specialty through progressively responsible 
positions directly related to the specialty. 
The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D) provides five methods by which a petitioner can satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4): 
(1) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a program 
for granting such credit based on an individual's training and/or work experience; 
(2) The result of recognized college-level equivalency examinations or special credit programs 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONS!); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 1 
(4) Evidence of certification or registration from a nationally recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training and/or 
work experiences in areas related to the specialty and that the noncitizen has achieved 
recognition of expertise in the specialty occupation as a result of such training and experience. 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of 
specialized training and/or work experience must be demonstrated for each year of college-level 
training the [non-citizen] lacks ... .It must be clearly demonstrated that the [non-citizen's] training 
and/or work experience included the theoretical and practical application of specialized knowledge 
required by the specialty occupation; that the [non-citizen's] experience was gained while working 
with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty 
occupation; and that the [non-citizen] has recognition of expertise in the specialty evidence by at 
least one type of documentation such as: 
1 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training and/or work experience. 
2 
(i) Recognition of expertise in the specialty occupation at least two recognized authorities in 
the same specialty occupation;2 
(ii) Membership in a recognized foreign or United States association or society in the specialty 
occupation; 
(iii) Published material by or about the [non-citizen] in professional publications, trade journals, 
books, or major newspapers; 
(iv) Li censure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant contributions 
to the field of the specialty occupation. 
It is important to note that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for 
USCIS application and determination. Furthermore, by the clear terms of the rule, experience will 
merit a positive determination only to the extent that the record of proceedings establishes all the 
qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including but not limited to, a type of 
recognition of expertise in the specialty occupation. 
II. ANALYSIS 
Long-standing legal standards require that the Director first determine whether the proffered position 
qualifies for classification as a specialty occupation and then move to determine whether the 
Beneficiary was qualified for the position at the time the nonimmigrant petition was filed. Cf.Matter 
of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). The Director has concluded that 
the proffered position here is a specialty occupation, and we see no error in that determination. But 
upon review of the record in its totality, we conclude the Petitioner has not established that the 
Beneficiary is qualified to perform the duties of a specialty occupation under section 2 l 4(i)(2) of the 
Act and the regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C). The record does not contain material, 
relevant, or probative evidence of the Beneficiary's qualifications to perform the duties of a specialty 
occupation. 
The Petitioner claims the Beneficia earned a bachelor's de ree in com uter science from __ 
________________________________ India. The 
record also contains five affidavits (two of which were executed by the same person at different times 
with different representations as described below) regarding purported work experience that took place 
between September 2008 and November 2009, January 2012 and April 2014, April 2014 and 
November 2023, and an overlapping period of employment between April 2020 and May 2022. 
2 The term "recognized authority" means a person or organization with expertise in a particular field, special skills or 
knowledge in that field. and the expertise to renderthe type ofopinion requested. 8 C.F.R. § 214.2(h)( 4)(ii). A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions. 
citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions 
were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. Id. 
3 
The record also contains two advisory opinions evaluating the Beneficiary's combined education and 
work experience. Dr. I I under the auspices of Morningside 
Evaluations concluded the Beneficiary's education and experience combination equaled a U.S. 
bachelor of science degree in computer information systems. With its appeal the Petitioner submits 
an advisory opinion from Dr.I I that concludes the Beneficiary's 
education and experience combination equated to a bachelor of science degree in computer science. 
The evaluations submitted by the Petitioner are also accompanied by either the writer's curriculum 
vitae; a self-authored statement of "expertise," letter( s) from their employing institutions attesting to 
their authorization to grant college-level credit or training and/or work experience in the specialty at 
an accredited college or university which has a program for granting such credit based on an 
individual's training/work experience, and/or documentation either from an internal policy document 
or printed from publicly available internet sources describing the institution's policy for granting 
academic credit. 
Upon de novo review, we conclude the evidence contained in the record does not satisfy any of the 
regulatory criteria required to demonstrate the Beneficiary's qualifications to perform the duties of a 
specialty occupation. 3 The record does not satisfy 8 C.F.R. § 214.2(h)( 4)(iii)(C)(]) because the 
Beneficiary does not possess a U.S. degree. It does not satisfy 8 C.F.R. § 214.2(h)(4)(h)(4)(iii)(C)(2) 
because the Beneficiary's foreign degree alone is not equivalent to a U.S. bachelor's degree required 
by the occupation. 4 And it does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(3) because there is no 
indication the Beneficiary holds an unrestricted State license, registration, or certification which 
authorizes them to fully practice the specialty occupation and be immediately engaged in that specialty 
in the state of intended employment. This leaves 8 C.F.R. 214.2(h)(4)(iii)(C)(4) as the Petitioner's 
only remaining pathway to approval. 
There are five alternative methods by which to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), and those 
methods are set forth at 8 C.F.R. § 214.2(h)(4)(iii)(D)(])-(5) as mentioned above. The record, 
however, satisfies none of the alternative methods. 
As stated previously, the Petitioner submitted two advisory opinions evaluating the Beneficiary's 
combined education and work experience into the record pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D)(]) 
3 The Director concluded, based on an examination of the Department of Labor (DOL) Occupational Outlook Handbook 
(the Handbook). that the Petitioner's proffered software developer position was a specialty occupation because its 
requirement for a bachelor's degree in computer science, information technology and/or any other closely related field of 
study corresponded with information contained in the Handbook stating software developers "typically need a bachelor's 
degree in computer and information technology or a related field." See Bureau of Labor Statistics, U.S. Dep't of Labor. 
Occupational Outlook Handbook, Software Developers, Quality Assurance Analysts, and Testers (Apr. 17, 2024), 
https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm. 
4 The transcript accompanying the Beneficiary's degree certificate reflects the Petitioner's course of education in their 
bachelor's degree program included mathematics, physics, "English," "Sanskrit," "Science & Civilization," and "Indian 
Heritage & Culture." Contrary to the Petitioner's assertion, the record does not adequately establish the Beneficiary earned 
a bachelor of science degree in computer science. Instead, it appears from the record that the Beneficiary earned a general 
three-year Indian bachelor of science degree. Consistent with Matter ofShah, 17 I&N Dec. 244 (Reg' 1 Comm'r 1977), an 
Indian three-year bachelor's degree is not the single source equivalent of a U.S. four-year bachelor's degree. The 
Educational Database for Global Education (EDGE), maintained by the American Association of Collegiate Registrars 
and Admissions Officers (AACRAO), reflects that baccalaureate degrees earned after a three-year course of study in India 
represent attainment of a level of education comparable to three years of university study in the United States. 
4 
to support their assertion of their satisfaction of the requirements contained in 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(4). In response to the Director's RFE, the Petitioner submitted an advisory 
opinion evaluation from Dr.I I under the auspices of Morningside 
Evaluations which concluded the Beneficiary's education and experience combination equaled a U.S. 
bachelor of science degree in computer information systems. With its appeal the Petitioner submits 
an advisory opinion from Dr. that concludes the Beneficiary's 
education and experience combination equates to a bachelor of science degree in computer science. 
On appeal, the Petitioner contends the Director erred when they concluded the advisory opinion the 
Petitioner submitted authored by Dr. _____________ under the auspices of 
Morningside Evaluations evaluating the Beneficiary's combination of education and experience did 
not sufficiently establish the Beneficiary's possession of credentials equivalent to a U.S. baccalaureate 
or higher degree in the specific specialty required to perform the duties of the Petitioner's proffered 
software developer position. The Petitioner asserts on appeal that "Dr. has the authority to make 
determinations with respect to the granting of college-level credit for training and experience in 
Management Information Systems, Business Administration, Computer Science, Computer 
Information Systems, Business Analytics, and related areas." 
At the outset, we draw attention to the evidence of the Beneficiary's work experience the Petitioner 
submitted into the record of proceeding here and was relied upon by the evaluator in formulating their 
advisory opinion and evaluation. The Petitioner's work experience documentation consists of five 
affidavits regarding purported work experience that took place between September 2008 and 
November 2009, January 2012 and April 2014, April 2014 and November 2023, and an overlapping 
period of employment between April 2020 and May 2022 authored by four different people claiming 
to be the Beneficiary's co-workers or colleagues. 
The longest period of the Petitioner's previous purportedly progressive employment experience is 
documented by affidavits containing the sworn testimony of 
attests that they worked with the Beneficiary from April 2014 
continuing to November 2023. In one of their affidavits, 
testimony describes the Petitioner as an employee of But in 
an affidavit submitted with the a eal, testifies that the Beneficiary 
is an employee of are "projects." 
We are therefore doubtful about testimonial because we cannot 
determine who the Petitioner's true employer is and whether the affidavits and testimony therein 
amount to reliable evidence of the Petitioner's progressive work experience. Doubt cast on any aspect 
of a petitioner's evidence may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988). The name 
of the Petitioner's actual employer is a key relevant fact and this inconsistency raises reasonable 
questions about the remaining facts described in the evidence the Petitioner submits. 
Furthermore, the Petitioner characterizes its evidence of the Beneficiary's work experience as 
"secondary evidence" and encourages us to accept it as adequate because "primary evidence is not 
available," purportedly because "the [B]eneficiary was not able to obtain the employment experience 
letters with the detailed job duties [they] performed for [their employer]." The Petitioner cites to 8 
C.F.R. § 204.2(d)(2)(v) to support its assertion. But the regulation the Petitioner references applies to 
5 
evidence to support an immigrant petition for a child or son or daughter. It does not apply to initially 
required work experience documentation. The Beneficiary's work experience documentation is 
required to evaluate the equivalency of the combination of the Beneficiary's education and experience 
to the degree in the specialty required to perform the duties of the proffered job. In other USCIS 
petition proceedings that require demonstration of work experience, the applicable regulations require 
"evidence relating to qualifying experience or training ... shall be in the form of letter(s) from current 
or former employer( s) or trainer(s) and shall include the name, address, and title of the writer, and a 
specific description of the duties performed by the [noncitizen] or of the training received." 
See 8 C.F.R. § 204.S(g)(l). When required evidence is missing or unavailable, the regulations permit 
the submission of secondary evidence, but only upon a demonstration of the primary evidence's 
nonexistence or unavailability. See 8 C.F .R. § 103.2(b )(2)(i). The regulations the Petitioner cited do 
not appear to apply, and the Petitioner has not demonstrated the unavailability of what they consider 
by inference as "primary evidence" of the Beneficiary's work experience with material, relevant or 
probative evidence in the record. So, the "secondary evidence" the Petitioner submits is not 
persuasive, and we afford it less weight. 
Moreover, even if we were to set aside our concerns about the evidence the Petitioner submitted to 
support the Beneficiary's work experience, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(I) requires 
that an evaluation of education and work experience be written by an official with the authority to 
grant college-level credit for training and/or experience in the specialty at an accredited college or 
university with a program for granting such credit based on an individual's training and/or work 
experience. Dr.I I opinion is accompanied by two letters from officials at his employer, 
I I attesting to Dr. I !authority to issue credit for relevant work experience where 
appropriate. The letters are identical in every way other than the letterhead and signature blocks. Most 
specifically, the content of the submitted letters conflicts with public information froml I 
I which makes no provision for credit to be authorized based on work experience.I I
I per their public transfer credit policy only awards credit for academic work completed at 
other academic institutions and not for work experience or training. Examples of sources listed in the 
policy from which _______ may accept credit are accredited institutions, foreign 
universities, U.S. military credit for approved job and educational experience and miscellaneous 
sources such as internships, and nontraditional learning experiences. Work experience is not 
mentioned or provided for. Moreover, the olic states that the credit may or may not apply for the 
purposes of graduation from regardless of the number of credits transferred. 
See generally Transfer Credit - ________ - Modem Campus Catalog, 
https:// l/content.php?catoid=35&navoid=26574. This conflict raises doubt about 
whether the writer is authorized to grant credit based on training and/or work experience. The record 
of proceeding does not contain material, relevant, or probative evidence addressing this discrepancy. 
And the advisory opinion from Dr. _____________ is similarly unpersuasive. 
Like Dr. I I also relied upon the inconsistent and "secondary" work experience 
evidence the Petitioner submitted to formulate their advisory opinion evaluation. As we have 
discussed above, we harbor doubts about the sufficiency of this evidence. Additionally, Dr.
Iemployer, I I describes three discrete methods by which a matriculated 
______ student can seek college-level credit. I Jmay provide college-
level credit for direct credit transfers, prior learning assessment (PLA) portfolios, professional 
certifications or designations, or "other options." Dr. I I advisory opinion evaluation does 
6 
I 
not specify under what category they evaluated the Petitioner's credentials and work experience. But 
the printouts supporting Dr. I Iadvisory opinion evaluation contain a description of I I 
I IPLA portfolios. So we conclude the applicable manner of evaluating the Beneficiary's 
qualifications and eligibility for credit at _____ would be through the PLA portfolio 
process. 5 Whilst Dr.I I advisory opinion evaluation discusses the affidavit format evidence 
of the Beneficiary's work experience that we have previously described as troublesome and also 
indicates that they reviewed the Beneficiary's degree certificate, they do not identify or list review of 
any other documentation that would ordinarily be contained in a PLA portfolio, such as a resume, 
narrative essay, or other supporting evidence. Nor does Dr. I I advisory opinion evaluation 
identify how the Beneficiary's work experience aligns with the learning objective of specified related 
academic courses and programs to the course of study and degree they are equating the Petitioner's 
education and experience to. Moreover, ______ states that their PLA portfolio can result 
in up to 75% of the credits required for an undergraduate degree, but not a full qualification as Dr. 
I I has concluded here. So, Dr.I I advisory opinion evaluation's conclusions appear 
to conflict with the credit granting process has described for awarding credit for 
prior-college level learning gained outside the traditional classroom. 
Moreover, Dr.I !advisory opinion evaluation erroneously simplifies the so-called "three-for­
one" rule. The only section of the H-lB beneficiary-qualification regulations that provides for 
application of a three-for-one ratio is the provision at 8 C.F.R. § 2 l 4.2(h)( 4 )(iii)(D)( 5). However, that 
provision reserves its application exclusively for USCIS agency determinations. And, that provision 
requires substantially more than simply equating any three years of work experience in a specific field 
to attainment of a year's worth of U.S. college credit in that field or specialty. In fact, the provision 
inserts several elements of proof into the experience and/or training equation Dr. I I has 
seemingly overlooked. 
We may, in our discretion, discount or give less weight to an evaluation of a person's work experience 
where that opinion is not in accord with other information or is in any way questionable. Matter of 
Sea, Inc., 9 I&N Dec. 817,820 (Comm'r 1988). We exercise that discretion here and find that the 
evaluations the Petitioner submitted do not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). 
Nor is there sufficient evidence in the record to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(D)(2), (3), or (4). 
We will therefore tum to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), which, as noted above, grants us the 
authority to make our own determination on the Beneficiary's qualifications. The record is not 
sufficient to satisfy that criterion either, as neither the evaluations, the documents accompanying them, 
nor any other part of the record of proceedings provides sufficient work experience evidence for us to 
reasonably conclude that the Petitioner has satisfied at least one of the requirements of 8 C.F.R. 
§ 214 .2(h )( 4 )( iii )(D )( 5)( i)-( v). Accordingly, we cannot conclude that the evidence of the Beneficiary's 
work experience qualifies for recognition of any years of college-level credit by correct application of 
the H-lB beneficiary-qualification regulations' "three-for-one" standard. Therefore, based upon the 
findings articulated above, we conclude that the totality of the evidence regarding the Beneficiary's 
5 Whilst the materials refer to "other options" the evidence in the record does not identify or describe any "other options" 
aside from direct credit transfers, prior learning assessment (PLA) portfolios, and professional ce11ifications or 
designations to pursue college-level credit. 
7 
foreign education and work experience does not satisfy any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(C) 
and (h)(4)(iii)(D). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
8